Charity commission head urged to mediate in row over care workers' pay

Will there be an appeal?

It is understood that the court refused permission to appeal. However, an application can be made directly to the supreme court, usually within 28 days. If an appeal is pursued, it will reignite uncertainty about the viability of the sector.

Are all sleep-in shifts covered by the ruling?

Not necessarily. The judgment was limited to the facts of the case where sleep-in staff were “expected to sleep for all or most of the period but may be woken if required to undertake some specific activity”. Staff were only available for work and did not need to be paid the NMW when asleep.

It is not clear exactly where the line is drawn and each case will need to be assessed on its facts. For example, what if:

Sleep-in staff are required to carry out regular checks on service users during the shift?

The complex needs of service users mean that staff have to get up and provide support a number of times through the night?

How will care providers react to the ruling?

Some, predominantly larger, organisations have already increased pay for sleep-in shifts to the NMW. While the cost implications are considerable, it seems unlikely that these providers will revert to paying only an allowance for sleep-in shifts. They have budgeted for the increased costs and reversing their decision would create negative publicity, damage staff morale and remove their competitive advantage in recruiting staff. Any such change may also be restricted by contractual or employment law obligations.

Providers that haven’t increased the sleep-in rate are unlikely to do so now. However, they will be at a competitive disadvantage to providers that have increased rates, and the pressure of recruitment and retention challenges may force them to increase sleep-in rates. Many will need additional funding from local authorities to do this.

What happens to providers that joined the Social Care Compliance Scheme?

After an earlier ruling that sleep-in shifts were subject to the NMW, the government set up a Social Care Compliance Scheme. This is a voluntary scheme that gives providers up to a year to identify what they owe to workers, supported by advice from HM Revenue and Customs (HMRC). Employers who identify arrears at the end of the self-review period will have up to three months to pay workers. HMRC has not yet responded to the judgment so it is unclear what will happen to providers that joined the scheme. A number of questions remain unanswered:

Will it now close the SCCS or wait for the outcome of any appeal?

Will providers that are nearing the deadline for declaration still be required to submit it? Will HMRC provide written confirmation that this is not necessary?

Will HMRC compensate providers it previously required to back pay staff for sleep-in shifts?

Will local authorities reduce sleep-in rates?

Will local authorities that have increased sleep-in rates now reduce them in light of the court of appeal ruling? It is sincerely hoped not. It would be a retrograde step given the significant underfunding in the sector.

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Ultimately, there must be a proper funding solution for social care. More funding would enable higher pay for staff, improved recruitment and retention and, importantly, more great care and support for service users.